In the News

Professor Shubha Ghosh Provides Insight into Google Ad Tech Antitrust Case

Professor Shubha Ghosh, director of the Syracuse Intellectual Property Law Institute, spoke with Ars Technica about the U.S. Department of Justice’s (DOJ) monopoly trial against Google that challenges its ad tech dominance.

In terms of potential remedies sought by the DOJ, Ghosh told Ars that “if this case goes against Google as the last one did, it could set the stage for splitting it into separate search and advertising companies.”

In the DOJ’s complaint, prosecutors argued that it “is critical to restore competition in these markets by enjoining Google’s anticompetitive practices, unwinding Google’s anticompetitive acquisitions, and imposing a remedy sufficient both to deny Google the fruits of its illegal conduct and to prevent further harm to competition in the future.”

Ghosh said that undoing Google’s acquisitions could lead to Google no longer representing both advertisers’ and sellers’ interests in each ad auction—instead requiring Google to either pick a side or perhaps involve a broker.

Professor Nina Kohn Speaks with MLive on the State of Nursing Homes in Michigan

Professor Nina Kohn discussed legal aspects of nursing home licensure and patient rights with MLive for the article “Michigan used to shut down its worst nursing homes. Then it stopped.”

The article takes an extensive review of nursing homes in Michigan and how the licensing, inspection, and closure of underperforming nursing homes have changed over time.

Regarding closing underperforming nursing homes, Kohn said states have a “dormant ability to use existing state law to get the worst actors out of the system. And the thing we’ve seen is states not using their powers.”

She continued “What you’re doing when you close a nursing home that has shown it’s incapable of necessary care is you’re protecting the most vulnerable people in your community. Certainly, moving is not what most residents look forward to. It can have ramifications. But if you keep these facilities open, you’re just perpetuating the cycle of bringing in more people to be victimized.”

Kohn notes that states’ power to license nursing homes could be an effective way to get the worst companies to improve or shut down if they don’t.  “Licensure, unfortunately, in many states, has become sort of paper pushing or rubber stamp function,” she said.

The article may be behind a paywall.

“We’d Be in Uncharted Waters” Professor Greg Germain on a Possible Jail Sentence in Donald Trump Criminal Case

Professor Gregory Germain spoke with Newsweek on the September 18 sentencing of Donald Trump in the false business records criminal case. Germain believes an appeals court would strike down any prison term.

“If Judge Merchan sentenced him to jail in the middle of the election for this records violation, I think the courts would do whatever is necessary to prevent it. We’d be in uncharted waters,” he said. “But I don’t think Merchan will sentence him to jail. I think there were serious problems with the case, and it should be reversed on appeal in due order without upsetting the election cycle.”

Professor David Driesen Discusses How the SCOTUS Presidential Immunity Ruling Could Affect New Trump Indictment

University Professor David Driesen spoke with Salon for the article, “Legal scholars warn SCOTUS could “manipulate” immunity definition to torpedo new Trump indictment” relating to a new indictment Special Counsel Jack Smith has filed against Donald Trump.

“It’s not clear whether this will work because on appeal the Supreme Court can manipulate the category of official conduct to create a broader immunity covering other elements of the indictment,” says Driesen.

“The Supreme Court ruling clearly overrode longstanding constitutional norms forbidding presidents from issuing orders to investigate political opponents or to challenge election results,” he says. “The forcing of these amendments to the indictment highlights how the high court has opened the door wide to autocracy.”

Professor Shubha Ghosh Discusses Google Antitrust Ruling With Techopedia

Professor Shubha Ghosh, Director of the Syracuse Intellectual Property Law Institute, spoke with Techopedia for their article, “Can Internet Search Survive Google Antitrust Ruling?” Recently, a federal judge found that Google maintained an illegal monopoly on the internet search engine market.

Ghosh says that the ruling could lead to a point where the court would force Google to rework some of its contracts with partners.

“The ruling could help move internet search into a purer regime where search companies can finance search engines without distorting them. The court will likely move to rework contracts with vendors and advertisers. But there is only so much the court can do,” says Ghosh.

“Stuck Her Chin Out” Professor Emeritus William C. Banks on Judge Aileen Cannon Throwing Out the Donald Trump Documents Case

Special counsel John L. “Jack” Smith recently filed an appeal with the U.S. Court of Appeals for the 11th Circuit to reverse an order made by Judge Aileen Cannon that threw out the case saying the appointment of a special counsel was unconstitutional.

Speaking with Roll Call, Professor Emeritus William C. Banks said Cannon “stuck her chin out” with that ruling. Banks said Cannon’s ruling cut against decades of court decisions upholding the constitutionality of special counsels as well as the prior independent counsel statute.

“Prosecutors, attorneys general have had discretion to appoint officials for all sorts of circumstances since the beginning of the republic,” Banks said.

University Professor David Driesen Discusses Potential Legal Battles Surrounding the Presidential Election

University Professor David Driesen spoke with Business Insider for the article, “The courts could decide this presidential election, and both campaigns are gearing up for an ugly legal fight.”

“You now have, in the swing states of Georgia, Arizona, Michigan, Nevada, Pennsylvania, about 70 election deniers and commissions that are supposed to count the electoral votes, and already there have been about 20 cases where officials in recent elections have refused or delayed certification of results,” Driesen says. “So what Trump is going to do is claim some kind of fraud and then try to get the officials who believe him to delay or prevent certification on election results.”

Professor Shubha Ghosh Provides Insight into RealPage Antitrust Case

Professor Shubha Ghosh recently spoke with Legal Dive on the U.S. Department of Justice’s (DOJ) antitrust case against RealPage. The DOJ has sued RealPage under the Sherman Antitrust Act for deploying an algorithm that helped rental property owners turn into price-fixing collaborators.

Ghosh notes that the Supreme Court has made it clear it distinguishes between anticompetitive behavior among companies and the tools they use to reach their pricing decisions. That means the DOJ must show “a physical agreement to price-fix” to prove a Sherman Act violation.

By focusing on the rental algorithm, Ghosh says, the agency appears to be sidestepping this essential requirement and instead is “creating an inference of an agreement from the use of the algorithm. This shift would undermine traditional antitrust safeguards for competition.”

“Profoundly Weak” Professor Nina Kohn on State of Texas v. U.S. Department of Health and Human Services

Professor Nina Kohn recently spoke with Law360 on the lawsuit State of Texas v. U.S. Department of Health and Human Services, et al. that seeks to overturn minimum nursing home staffing levels as set by the U.S Centers for Medicare and Medicaid Services in April.

In the article “With Billions At Stake, Texas Suits Target Nursing Home Rule” states, Kohn says allegations that the rule is arbitrary and capricious, are undermined by research on the staffing levels necessary to avoid neglect and the full regulatory review CMS carried out before issuing the standards.

“Already, nursing homes were required to have sufficient staff to meet resident needs,” Kohn told Law360. “The problem is that they routinely didn’t. And because there was no set number of staff hours per day set, it was hard for regulators to hold nursing homes accountable for not having the staff needed to avoid neglect.”

The full article may be behind a paywall.

“A Clever Ploy” – Professor Gregory Germain on the Upcoming Sentencing of Donald Trump in His Criminal Case

Professor Gregory Germain spoke with Salon for an article about the September 18 sentencing of Donald Trump in the New York criminal case and efforts made by Trump’s attorneys to have the sentencing postponed until after the upcoming election.

“I think Trump’s request to delay sentencing is a clever ploy to make a record to argue in federal court that the judge was politically motivated to interfere with the federal election,” says Germain. “I doubt that the court will delay sentencing, but it will give Trump an additional argument to challenge the sentencing on appeal, or collaterally in a habeas corpus case if he’s sentenced to prison.”